Why the Instagram Debacle Just Taught Every Tech Company to Take Your Photos More Seriously

“Whatever kind of victory all those protests achieved, it wasn’t one for consumer rights — if anything, Instagram is the real winner here. The company just managed to score a round of positive press for retracting an unpopular change and give itself the ability to actually use photos in ads.” — Nilay Patel, The Verge

Over at the Verge Nilay Patel makes a case that the backlash earlier this week against Instagram’s unpopular TOS update was actually a loss for consumers, not a gain. He argues that Instagram’s current TOS is broader than their more explicit proposed one and so consumers are worse off, not better off. This is because Instagram technically still holds the rights to sell your photos under their current TOS, and even more broadly — the consumer backlash was misguided and really did more harm than good.

I disagree with Nilay and actually feel that this week’s backlash was one of the more significant movements yet for photo sharing on the web.

It’s not that Facebook (whose TOS is equally broad) and Instagram couldn’t legally sell your photos on the web under their broad TOS in the past or in the future, it’s that *politically* it is now far more difficult for them to begin selling your photos out from under you on the web using their broader TOS.

Who cares what the TOS says — the message that Facebook got loud and clear this week is not to f*** with our photos. Our photos are important. We care about them. They are much more personal than Facebook may have previously considered. They have emotional importance and significance and collectively users will rise up and bash you in the face if you try to exercise terms of your TOS that your lawyers have written to allow you to screw around with our photos.

Whatever your future monetization strategies might be, they will not be based on a loss of control over OUR creative efforts — even our duckface creative efforts.

No, there is no question about it. Instagram lost this week, and they lost big. This is in no way a positive for Instagram. People trust them less now and they had to turn around and eat crow — they gained nothing.

Flickr also went out of their way last year to really drive home the ownership rights of your photos. This old forgotten post was revived with new life as a stark contrast to what it felt like Instagram was trying to pull. Kevin Systrom eventually even had to parrot back some of that “yes, we know your photos are your photos” stuff in his awkward non-apology apology.

Dan Lyons wrote a post that talked about Google+ winning some here too. Google+ smartly has a provision in their TOS that specifically limits their rights to your photos to basic operational use. Google+ is probably the most active community of photographers on the web today and are a natural beneficiary from what Lyons’ refers to as “Facebook Greedheads.”

The biggest winner of all though was you, the photographer. Whatever Instagram’s original intention was with the new language in their TOS, it backfired on them. The idea that they could/would profit off your emotionally significant photos without your consent, authorization or, most important, sharing the dough hit a nerve with photographers and likely won’t be tried again by anyone for a long time.

The thing is, this didn’t have to be such a painful learning experience for Instagram. There was/is, in fact, a HUGE opportunity for some smart social network to make a ton of money off of your photos. Instagram just went about it wrong.

As much as Flickr’s deal with Getty sucks (photographers get a miserly 20% payout) photographers on Flickr still went bonkers for it when Flickr released it. The idea that you could actually get PAID to post your photos on a social network, paid ANYTHING, had most users on Flickr clamoring to get into the program, not out of the site.

Even though Flickr/Getty’s call for artists group is now closed (due to overwhelming demand) almost 90,000 photographers joined this group hoping to get selected by Getty for the right to sell their photos for the paltry 20% payout.

The difference with Flickr’s deal though is that 1. you CHOOSE to opt in and 2. at least you get paid something.

What if, instead of Instagram saying, “hey, we might sell your photos without your consent and pay you NOTHING,” they said, “hey, do you want to sell your Instagram photos and, if we sell them for you, split the money 50/50″? Instead of losing accounts and becoming the scourge of the internet for three days, they would have had photographers rushing to sign up and begin marketing their images on Instagram.

Although there are sites out there like 500px and SmugMug that let you sell your photos now, Flickr is the only larger social network that has a selling program. Google+, Instagram, Facebook, and even Twitter all have a major opportunity to become the first large social network to allow us to license our images through their service and share in the revenue with them. This is a multi-BILLION dollar industry dominated at present by Getty who is not paying creatives enough for their work. What the internet does best is get rid of middlemen when they are being unreasonable, and an 80/20 split with photographers is unreasonable.

Instead of stealing our work and paying us zero, how about using your significant reach in reputation, marketing and search to partner with us and empower us to sell our work together. I guarantee you that whoever comes up with the best program first will have some of the best photography on the web flooding their network. Even if 99% of us never sell a single photo, simply giving us the feeling that we have the *opportunity* to sell a photo would be a powerful incentive to get us active and humming on your network.

10 Comments

Thomas, I agree with you on all points. If Instagram just came out and did the proposal that you did, I would have imagine that people would have flocked to them instead of deleting and leaving the service all together. I’m glad that Flickr got a big win from this. I have my loyalties and nostalgic feeling for them. Yes I have fallen off of my Flickr Wagon the pass few years but this debacle has shined the light on Flickr once again. This is the sight were I got first introduced to you and your goal of taking a Million photos. Thank you for taking the time to write and share the great post!

Well said Mr.Hawk. Major mistake by Instagram. They could recover if they did as you said. Even the galleries I work with give me at least 40% when I sell my paintings, and they have brick and mortar to businesses to maintain. Getty does indeed suck for photographers and videographers. Pulled all my stock from them on principle.

I had to laugh at this: “Our photos are important. We care about them. They are much more personal than Facebook may have previously considered. They have emotional importance and significance…”

If you’re using Instagram at all, then clearly your photos do NOT have emotional importance and significance. Why not? Because each photo posted to that service is but a momentary instance in a rapidly moving public stream, with no way for you or others to revisit and reminisce. Each photo is nothing but a cry out for attention from others who also have little real interest in photography, but a lot of interest in being part of the “look at me” generation.

Instagram is Twitter for photos. Those who care about their words, blog or write a book. Those who care about their photos host them on Flickr, SmugMug or similar.

Old or new TOS, who cares? People are rising up to try to protect a freedom they never had, don’t deserve from a free service, and, quite frankly, don’t even need. Given enough time to think carefully about their use of Instagram, they may well agree that they are making noise for no other reason than to be heard. To feel powerful when they have no power. To gain the same feeling they get when they post a filtered image of their cute dog and all their “friends” drop by with a comment.

I think it is a battle lost. They did not revert back, they re-wrote the new TOS to be more cryptic, less easy understandable. They can now do, whatever they like. With all my idols and friends returning to instagram, I will stay there, too. I will continue uploading pictures like I did before. And even more I hear the sounding words of David Alan Harvey – “Don’t spill your beans!” – i.e. I will not post my good pictures, but those to keep me and my friends together.

Instagram can license (i.e. use your pictures) and sub-license (i.e. sell to others) without your further consent world-wide. (You consent by uploading)

I have to go with Mr. McGrath, above – Instagram has always been Twitter for people who don’t want to read (or can’t, as the snark goes). There are some who love it and get great use out of it, just like any shiny new thing, but I’ve never seen the appeal and I see even less appeal now….
(PS – I’m also a cynical bastard, and while not a luddite I do scratch my head a lot over many of the new app/web trends…)

From a broader perspective, this article brings up a good point; there is opportunity for a more sincere platform of photography. One that provides photographers with a more substantial payout, one that doesn’t just display fleeting photographs taken on a whim, yet one that has a sense of community. This was my aspiration when building photopatron.com. It’s a localized platform to sell fine art prints. Only 1 month old, and being run out of my apartment, I’d love some feedback. Cheers.